01/16/06 -- -- Dictatorships seldom appear full-fledged but
emerge piecemeal. When Julius Caesar crossed the Rubicon with
one Roman legion he broke the tradition that protected the
civilian government from victorious generals and launched the
transformation of the Roman Republic into the Roman Empire.
Fearing that Caesar would become a king, the Senate assassinated
him. From the civil wars that followed, Caesar’s grandnephew,
Octavian, emerged as the first Roman emperor, Caesar Augustus.

Two thousand years later in Germany, Adolf Hitler’s rise to
dictator from his appointment as chancellor was rapid. Hitler
used the Reichstag fire to create an atmosphere of crisis. Both
the judicial and legislative branches of government collapsed,
and Hitler’s decrees became law. The Decree for the Protection
of People and State (Feb. 28, 1933) suspended guarantees of
personal liberty and permitted arrest and incarceration without
trial. The Enabling Act (March 23, 1933) transferred legislative
power to Hitler, permitting him to decree laws, laws moreover
that "may deviate from the Constitution."

The dictatorship of the Roman emperors was not based on an
ideology. The Nazis had an ideology of sorts, but Hitler’s
dictatorship was largely personal and agenda-based. The
dictatorship that emerged from the Bolshevik Revolution was
based in ideology. Lenin declared that the Communist Party’s
dictatorship over the Russian people rests "directly on force,
not limited by anything, not restricted by any laws, nor any
absolute rules." Stalin’s dictatorship over the Communist Party
was based on coercion alone, unrestrained by any limitations or
inhibitions.

In this first decade of the 21st century the United States
regards itself as a land of democracy and civil liberty but, in
fact, is an incipient dictatorship. Ideology plays only a
limited role in the emerging dictatorship. The demise of
American democracy is largely the result of historical
developments.

Lincoln was the first American tyrant. Lincoln justified his
tyranny in the name of preserving the Union. His extra-legal,
extra-constitutional methods were tolerated in order to suppress
Northern opposition to Lincoln’s war against the Southern
secession.

The first major lasting assault on the US Constitution’s
separation of powers, which is the basis for our political
system, came with the response of the Roosevelt administration
to the crisis of the Great Depression. The New Deal resulted in
Congress delegating its legislative powers to the executive
branch. Today when Congress passes a statute it is little more
than an authorization for an executive agency to make the law by
writing the regulations that implement it.

Prior to the New Deal, legislation was tightly written to
minimize any executive branch interpretation. Only in this way
can law be accountable to the people. If the executive branch
that enforces the law also writes the law, "all legislative
powers" are no longer vested in elected representatives in
Congress. The Constitution is violated, and the separation of
powers is breached.

The principle that power delegated to Congress by the people
cannot be delegated by Congress to the executive branch is the
mainstay of our political system. Until President Roosevelt
overturned this principle by threatening to pack the Supreme
Court, the executive branch had no role in interpreting the law.
As Justice John Marshall Harlan wrote: "That congress cannot
delegate legislative power to the president is a principle
universally recognized as vital to the integrity and maintenance
of the system of government ordained by the Constitution."

Despite seven decades of an imperial presidency that has risen
from the New Deal’s breach of the separation of powers,
Republican attorneys, who constitute the membership of the
quarter-century-old Federalist Society, the candidate group for
Republican nominees to federal judgeships, write tracts about
the Imperial Congress and the Imperial Judiciary that are briefs
for concentrating more power in the executive. Federalist
Society members pretend that Congress and the Judiciary have
stolen all the power and run away with it.

The Republican interest in strengthening executive power has its
origin in frustration from the constraints placed on Republican
administrations by Democratic congresses. The thrust to enlarge
the President’s powers predates the Bush administration but is
being furthered to a dangerous extent during Bush’s second term.
The confirmation of Bush’s nominee, Samuel Alito, a member of
the Federalist Society, to the Supreme Court will provide five
votes in favor of enlarged presidential powers.

President Bush has used "signing statements" hundreds of times
to vitiate the meaning of statutes passed by Congress. In
effect, Bush is vetoing the bills he signs into law by asserting
unilateral authority as commander-in-chief to bypass or set
aside the laws he signs. For example, Bush has asserted that he
has the power to ignore the McCain amendment against torture, to
ignore the law that requires a warrant to spy on Americans, to
ignore the prohibition against indefinite detention without
charges or trial, and to ignore the Geneva Conventions to which
the US is signatory.

In effect, Bush is asserting the powers that accrued to Hitler
in 1933. His Federalist Society apologists and Department of
Justice appointees claim that President Bush has the same power
to interpret the Constitution as the Supreme Court. An Alito
Court is likely to agree with this false claim.

This is the great issue that is before the country. But it is
pushed into the background by political battles over abortion
and homosexual rights. Many people fighting to strengthen the
executive think they are fighting against legitimizing sodomy
and murder in the womb. They are unaware that the real issue is
that America is on the verge of elevating its president above
the law.

Bush Justice Department official and Berkeley law professor John
Yoo argues that no law can restrict the president in his role as
commander-in-chief. Thus, once the president is at war – even a
vague open-ended "war on terror" – Bush’s Justice Department
says the president is free to undertake any action in pursuit of
war, including the torture of children and indefinite detention
of American citizens.

The commander-in-chief role is probably sufficiently elastic to
expand to any crisis, whether real or fabricated. Thus has the
US arrived at the verge of dictatorship.

This development has little to do with Bush, who is unlikely to
be aware that the Constitution is experiencing its final rending
on his watch. America’s descent into dictatorship is the result
of historical developments and of old political battles dating
back to President Nixon being driven from office by a Democratic
Congress.

There is today no constitutional party. Both political parties,
most constitutional lawyers, and the bar associations are
willing to set aside the Constitution whenever it interferes
with their agendas. Americans have forgotten the prerequisites
for freedom, and those pursuing power have forgotten what it
means when it falls into other hands. Americans are very close
to losing their constitutional system and civil liberties. It is
paradoxical that American democracy is the likely casualty of a
"war on terror" that is being justified in the name of the
expansion of democracy.

Dr. Roberts [send
him mail] is John M. Olin
Fellow at the Institute for Political Economy and Research
Fellow at the
Independent Institute. He is a former associate editor of
the Wall Street Journal, former contributing editor for
National Review, and a former assistant secretary of the
U.S. Treasury. He is the co-author of
The Tyranny of Good Intentions.

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